Public Foundation Instituted by the Government with Legal Personality Under Private Law

Abstract

The article examines the legal nature, normative framework, and control mechanisms of public foundations instituted by the Government with legal personality under private law. It begins with a historical reconstruction of the institute, highlighting its incorporation into the Brazilian legal system through Decree-Law No. 200/1967 and subsequent amendments, in order to argue that these entities are part of the Indirect Administration, although generally subject to private law, without losing their functional link to the public interest. The author analyzes their essential characteristics, such as creation by authorizing statute, acquisition of legal personality through registration, impossibility of extinction by their own will, adoption of labor-law rules for employees, subjection to public competitive examinations, administrative, financial, and purposive control, as well as the use of instruments such as state service contracts and specific governance structures. The article then discusses the constitutional compatibility of such foundations with article 37, XIX, of the Federal Constitution, especially after Constitutional Amendment No. 19/1998, as well as the case law of the Supreme Federal Court, which recognizes the coexistence of public-law public foundations, private-law public foundations, and strictly private foundations. In conclusion, it maintains that private-law public foundations have a hybrid legal regime, combining private-law techniques with the limits and controls typical of public law, which makes them an important instrument for administrative decentralization in fields not exclusive to the State.